Clause 90 Searches, examinations and fingerprinting: Northern Ireland

212. This clause covers extending the powers on finger printing to Northern Ireland.

Clause 91 Photographing of suspects etc.: England and Wales

213. Clause 91 inserts a new section 64A after section 64 of PACE.

214. Subsection (1) of the new section 64A provides a power to photograph a person who is detained at a police station with the appropriate consent or, where consent is withheld, without it.

215. Subsection (2) provides that a person may, in order to take a photograph of a person, require the removal of any item or substance, such as face paint, worn on or over the whole or any part of that person's face or head and if the person does not comply with this requirement, they may remove the item or substance themselves.

216. Subsection (3) limits who can take a photograph to constables and persons who are not constables but are designated for the purpose by the relevant chief officer of police. Subsection (3) also applies section 117 of PACE (power to use reasonable force) to persons other than constables in the exercise of the powers conferred under section 64A.

217. Subsection (4) provides that photographs can be used by or disclosed to any person for the purpose related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution and that they can be subsequently retained, but then only used for a related purpose.

218. Subsection (5) sets out the definition of references to crime, investigation and prosecution.

219. Subsection (6) defines references to taking a photograph to include references to using any process to produce a visual image.

Clause 92 Photographing of suspects etc.: Northern Ireland

220. This section covers extending the powers on photographing to Northern Ireland

Clause 93 Powers to require removal of disguises Great Britain

221. Subsection (1) of the clause will provide for the Criminal Justice and Public Order Act 1994 to be amended by the insertion of a new section (s 60AA)

222. Subsection (1) of new section 60 AA sets out the circumstances in which these powers may be used. These circumstances are where

an authorisation under section 60 of the Criminal Justice and Public Order Act 1994 is in force; or

an authorisation under subsection (3) is in force.

223. Currently an authorisation under section 60 may be given where a senior officer reasonably believes incidents involving serious violence may take place in any locality. It gives the police powers to stop and search pedestrians and vehicles for offensive weapons or dangerous instruments. It also gives power to require the removal of face coverings worn for the purpose of concealing identity and to seize any such items.

224. Subsection (2) of that section confers power on any constable in uniform:

to require the removal of any item which he reasonably believes a person is wearing wholly or mainly for the purpose of concealing his identity;

to seize any item which he reasonably believes any person intends to wear wholly or mainly for that purpose.

225. Subsection (3) describes the circumstances which must exist before the authorisation, referred to in subsection (1)(b), in order for an authorisation to be given. The circumstances are that a police officer of or above the rank of inspector reasonably believes that:

activities may take place in that area that are likely, if they take place, to involve the commission of offences; and

it is expedient in order to prevent or control the activities to give an authorisation.

226. The authorisation means that the powers mentioned in para 219 shall be exercisable at any place within that locality for a period of 24 hours.

227. Subsection (4) provides that an officer of or above the rank of superintendent may direct that the authorisation referred to in subsection (3) shall continue in force for a further 24 hours if it is expedient to do so, having regard to offences which have been committed in connection with the activities in respect of which the authorisation was given, or are reasonably suspected to have been so committed.

228. Subsection (5) states that if an authorisation under subsection (3) is given by an inspector, he must, as soon as it is practicable to do so, inform an officer of or above the rank of superintendent.

229. Subsection (6) specifies the contents of an authorisation. It must be in writing signed by the officer giving it and specify the grounds on which it is given; the locality in which the powers are exercisable; the period during which those powers are exercisable. A direction under subsection (4) shall also be given in writing or, where that is not practicable, be recorded in writing subsequently.

230. Subsection (7) creates an offence of failing to remove an item when required to do so by a constable in the exercise of his power under this section. The penalty for this offence is, on summary conviction, imprisonment for a term not exceeding one month or a fine not exceeding level 3 on the standard scale.

231. Subsection (8) states that the powers conferred by this section are in addition to, and not in derogation, of any power otherwise conferred.

232. Subsections (2)-(4) of Clause 67 make minor consequential amendments to the Criminal Justice and Public Order Act 1994 and the Police and Criminal Evidence Act 1984, making a power of arrest available for the offence in s.60AA(7).

Clause 94 Powers to require removal of disguises : Northern Ireland

233. Clause 94 will provide for the Public Order (Northern Ireland) Order 1987 to be amended by the insertion of a new Article 23A, which will make similar provision for Northern Ireland to that made for Great Britain by virtue of Clause 92. Accordingly, where a senior police officer reasonably believes that incidents involving the commission of offences may take place within a locality, he may issue an authorisation which will enable the police to exercise powers to require the removal of face coverings worn for the purpose of concealing identity, and to seize any such items. Under the Northern Ireland (Emergency Provisions) Act 1996, it was an offence to wear a mask or hood in a public place for the purpose of concealing identity. This provision was repealed when the Terrorism Act 2000 took effect.

234. A consequential amendment is also made to the Police and Criminal Evidence (Northern Ireland) Order 1989 to provide that failure to comply with the requirement to remove a disguise is an arrestable offence.

Clause 95 Power to Stop and Search in Anticipation of Violence : Northern Ireland

235. Clause 95 will provide for the Public Order (Northern Ireland) Order 1987 to be amended by the insertion of a new Article, which will make similar provision for Northern Ireland to that made for Great Britain by virtue of Section 60 of the Criminal Justice and Public Order Act 1994 which does not extend to Northern Ireland. Where a senior police officer reasonably believes that incidents involving serious violence may take place in a locality, he may issue an authorisation which will enable the police to stop and search pedestrians and vehicles for offensive weapons or dangerous instruments and to seize any such instruments.

Clause 96 Seized Articles : Northern Ireland

236. Clause 96 will provide for the Public Order (Northern Ireland) Order 1987 to be amended by the insertion of a new Article 23C, which enable the Secretary of State to make regulations to govern the retention and disposal of things seized under new Articles 23A and 23B.

MOD and transport police

Clause 97 Jurisdiction of MOD police

237. The Ministry of Defence Police ("MDP") is a civilian police force exercising full constabulary powers within its jurisdiction. This jurisdiction is defined in the Ministry of Defence Police Act 1987 ("the 1987 Act"), which is the principal legislation governing the force. The limitations on the jurisdiction of the force have been reviewed in the light of the threat of terrorism and of the changed deployment pattern of the MDP. The changes in deployment include the increased use of mobile patrols, involving movement between defence establishments and bringing MDP officers more into contact with the public than previously.

238. The jurisdiction of the MDP is governed by section 2 of the 1987 Act. The overall effect is to give the force jurisdiction in relation to defence land, property and personnel within the United Kingdom and its territorial waters. The MDP is also able to operate on land in the vicinity of defence land where a constable of a local force has asked for assistance.

239. The clause extends the MDP's jurisdiction, by amending section 2 of the 1987 Act.

240. Subsection (2) amends section 2(2) of the 1987 Act, which deals with the places where the MDP have jurisdiction. Subsection (2) repeals the existing power in relation to acting on land in the vicinity of defence land in response to specific requests from a member of a local force. The repealed power is superseded by a new power provided for by subsection (4).

241. Section 2(3)(b) of the 1987 Act currently provides for the MDP to have an additional jurisdiction in relation to defence personnel. It applies anywhere in the United Kingdom in which the MDP do not have jurisdiction under section 2(2) of the 1987 Act. The jurisdiction is thought to be confined to the alleged commission of offences by defence personnel. Subsection (3) extends the jurisdiction to offences against defence personnel; for example, an attempt to bribe defence personnel to disclose confidential information.

242. Subsection (4) confers powers on the MDP where a request is made by a member of a Home Department police force, the Police Service of Northern Ireland, the British Transport Police or the United Kingdom Atomic Energy Authority Constabulary. The new powers supersede those repealed by subsection (2). Unlike those repealed by subsection (2), the new powers are restricted to the particular incident, investigation or operation in relation to which assistance is requested, but they are not restricted to the vicinity of defence land. They will be exercisable within the police area of a requesting Home Department police force, within Northern Ireland (in the case of the Police Service for Northern Ireland), within their railway jurisdiction (in the case of the British Transport Police), or (in the case of the United Kingdom Atomic Energy Authority Constabulary) where an officer of that force may act.

243. Subsection (4) also deals with occasions on which MDP officers face emergencies where their normal jurisdiction would not apply. It may not be possible for the MDP officer to obtain timely authority from the local police force to deal with the incident. Subsection (4) empowers an MDP officer in uniform (or having proof of being an MDP officer) to act without a request for assistance from a Home Department or other police officer, in limited circumstances, if he reasonably believes that waiting for such a request would frustrate or jeopardise the purpose of his action. These circumstances are where the MDP officer has reasonable grounds for suspecting that an offence is about to be committed, is being committed or has been committed, or where he reasonably believes that action is necessary to save life or prevent or minimise personal injury.

Clause 98 Provision of assistance by MoD police

244. This clause inserts a new section (section 2A) in the 1987 Act. It deals with where another police force requires extra resources to meet a special burden. The new section allows such assistance to be given by the MDP, where requested by the chief police officers listed, to enable their force to meet any special demand on its resources. It provides that, where MDP officers serve with other forces as a part of such assistance, they come under the direction of the chief officer of the force with which they are serving for the time being and have full powers of a constable of that force, (i.e. without the jurisdictional limits applying to MDP officers).

Clause 99 Jurisdiction of transport police

245. This clause is to permit British Transport Police ("BTP") officers to act outside their normal railways jurisdiction. These measures are intended to improve the effectiveness of the BTP enabling it to play a fuller role in protecting the public from terrorism and other crimes.

246. BTP constables already have jurisdiction on, and in the vicinity of, the railways and elsewhere on railways matters. They need however to move between railway sites and often have a presence in city centres, and BTP officers are frequently called upon to intervene in incidents outside their 'railways' jurisdiction. It is estimated that some such 8,000 incidents occur each year. In these circumstances BTP officers only have the powers of an ordinary citizen, despite being police officers fully trained to the standards of a Home Office force, and despite routinely dealing with the same range of incidents in the course of their railway activities.

247. Subsection (1) allows a BTP officer to assist a member of a Home Department police force, the MDP or the UK Atomic Energy Authority Constabulary (UKAEAC) when assistance is requested by them. The BTP officer can only assist in relation to a single incident, investigation, or operation but will have the same powers and privileges of a constable of the requesting police force. This is to avoid confusion, so that there will be no difference in the powers available to the BTP officer on such an occasion and an officer from the other force whom he is assisting.

248. Subsection (2) allows a BTP officer to intervene if he reasonably believes that an offence has been, is or is about to be committed; or in order to prevent injury or save life. In these circumstances the BTP officer will have the same powers and privileges of a Home Department police officer. A BTP officer can only act under subsection (2), if he satisfies the requirements of subsection (3).

249. Subsection (3) limits the circumstances when a BTP officer can act under subsection (2). He must be able to show evidence that he is a BTP officer i.e. be in uniform or have documentary proof - e.g. his warrant card. In addition he can only act if he reasonably believes that waiting for a request for assistance from the police force with primary jurisdiction (i.e. the local Home Department force, MDP or UKAEAC) or waiting for one of their officers to act, would frustrate or prejudice the purpose of his intended action.

Clause 100 Further provisions about transport police and MoD police

250. This clause and Schedule 6 provides the BTP with additional police powers in certain circumstances. These powers are all currently available to local police force constables but not to the BTP. Certain similar powers are also extended to the MDP. The BTP and MDP are under the same restrictions as Home Office police forces regarding the application and use of these powers. Amendments to the following Acts of Parliament are contained in the Schedule:

251. Firearms Act 1968 (c.27). Amendment of section 54 of the Firearms Act 1968 allows BTP officers and associated civilian employees to possess, purchase and acquire CS incapacitant sprays and ammunition used for such sprays, but not any other prohibited firearm.

252. Police and Criminal Evidence Act 1984 (c.60). Amendment of sections 35 and 36 of the Police and Criminal Evidence Act 1984 is to allow the BTP's chief constable to designate police stations to be used to detain arrested persons and to appoint custody officers for these stations.

253. Criminal Justice and Public Order Act 1994 (c.33). Amendment of section 60 of the Criminal Justice and Public Order Act 1994 allows a BTP officer of the rank of inspector or above, to authorise, in certain circumstances, the use of certain stop and search powers in, on and in the vicinity of premises policed by the BTP when it is reasonably believed that incidents of violence may take place or that persons are carrying dangerous weapons.

254. Sections 136, 137 and 140 of the Criminal Justice and Public Order Act 1994 are amended so that the BTP can make use of these powers. These sections allow arrest warrants issued in England, Wales or Scotland to be executed in either of the other two countries or a constable from England and Wales or Scotland to arrest someone suspected of committing an offence in their own country, but now present in one of the other countries. They also provide a constable from England, Wales or Scotland with the same reciprocal powers of arrest as a local constable when that officer is in either of the other two countries.

255. Police Act 1996 (c.16). The amendment of section 23 of the Police Act 1996 will enable, subject to payment, the BTP to enter collaboration agreements with other police forces. The amendment of section 24 will allow, subject to payment, the BTP to provide aid to other police forces to meet special demands on that other force. When providing such aid, the BTP officer will be under the direction and control of the chief officer of that other force. The amendment to section 25 will allow the BTP to provide special police services to any person, subject to payment.

256. Amendment of sections 90 and 91 of the Police Act 1996 will make it an offence to impersonate a BTP constable or cause disaffection in the BTP (e.g. advocating strikes).

257. Terrorism Act 2000 (c.11). The amendment of section 34 of the Terrorism Act 2000 is to allow the BTP and the MDP, in certain circumstances, to designate areas in which cordons may be erected for the purposes of terrorist investigations. This will allow a constable in uniform to order a person or vehicle to leave the cordoned area and any adjacent area, to remove any vehicle and restrict access.

258. The amendment of section 44 of the Terrorism Act 2000 is to allow the BTP and MDP, in certain circumstances, to specify areas or places in which for up to 28 days where the BTP or MDP can stop and search vehicles, their occupants and pedestrians for the prevention of terrorism. An assistant chief constable, or higher, may authorise any uniformed constable to stop and search pedestrians or vehicles. The Secretary of State must confirm such orders within 48 hours.

PART 11: RETENTION OF COMMUNICATIONS DATA

Overview

259. Part 11 sets up a structure within which the Secretary of State can issue a code of practice relating to the retention of communications data by communications service providers, such as telephone and internet companies. Communications data is data relating to telephone, Internet and postal communications which does not include the substance of the communications itself. The Telecommunications (Data Protection and Privacy) Regulations 1999 regulate the retention of such data by communication service providers providing that such data can only be retained for certain specific commercial purposes. Otherwise it must be erased or made anonymous. Communications data can be a useful tool for law enforcement agencies and if held by a communications service provider will be accessible by a public authority under Chapter II of Part I of the Regulation of Investigatory Powers Act 2000 which is shortly to come into force. However, whilst the Regulations permit the retention of communications data on national security and crime prevention grounds there is currently no general guidance given as to when these might apply. Accordingly, communications service providers do not currently have a clear lawful basis for retaining communications data beyond the period that they require it for their own business purposes. Part 11 establishes a structure to regulate the continued retention of such data on national security and crime prevention grounds so that it may then be accessed by public authorities under the Regulation of Investigatory Powers Act 2000. Under clause 101 the Secretary of State can issue a voluntary code of practice which will provide a basis for retention of communications data. Clause 102 provides that if the voluntary scheme proves ineffective the Secretary of State may by affirmative order be authorised to impose mandatory retention directions on communications service providers. Clause 103 provides that the power to invoke the mandatory scheme in clause 102 will itself lapse unless renewed by affirmative order.

Clause 101 Codes and agreements about the retention of communications data

260. Subsection (1) sets out that a voluntary code of practice will be drawn up and issued by the Secretary of State. The code will be applicable to communications providers and will apply to communications data that they have generated or is otherwise in their possession.

261. Subsection (2) explains that the Secretary of State may enter into further agreements with specific communications providers, with the consent of both parties. These will specify in greater detail than the generic code the type of data that is retained, and the conditions of retention and retrieval. The aim of these individual agreements is to provide greater clarity as to each provider's retention practices for public authorities who are eligible under the Regulation of Investigatory Powers Act 2000 to access communications data.

262. Subsection (3) puts a requirement on the Secretary of State to consult with those who may be affected by the code, or their representatives, before issuing or revising it.

263. Subsection (4) requires the Secretary of State to publish the code of practice and any revised code in a way which brings it to the attention of the communications service providers to whom it applies.

264. Subsection (5) sets out that the code and any agreements may contain provisions necessary to safeguard national security, to prevent or detect crime and to prosecute offenders. The code and agreements may therefore contain any provision relative to those ends. Data retained in accordance with the code will therefore be retained for national security and law enforcement purposes, without prejudice to the communication provider's own business purposes.

265. Subsection (6) makes it clear that the code is voluntary: there are no penalties for non-compliance.

266. Subsection (7) allows the code or any agreement drawn up under this section to be used in legal proceedings brought against a communications provider by a person whose communications data they hold. Adherence to the terms of the code or agreement may be used as evidence that the retention of data is justified for national security or law enforcement purposes. This provision is intended to prevent a communications provider facing civil liability for retaining data in accordance with the code when they have no further need of it for business purposes.

Clause 102 Directions about retention of communications data

267. This clause permits the Secretary of State to issue compulsory directions if he is not satisfied that the operation of the voluntary code of practice is effective. Directions may only be given if the Secretary of State is authorised to do so by order.

268. Subsection (1) provides that the Secretary of State may by order authorise the giving of directions under this section.

269. Subsection (2) explains that the mandatory directions may apply to any of three categories: either all communications providers, a particular type of communications providers, or one or several specific communications providers.

270. Subsection (3) explains that the statutory order authorising the giving of directions must specify the maximum period for which any communications provider can be directed to retain any particular type of data.

271. Subsection (4) obliges the Secretary of State to consult with those who may be affected by the mandatory directions, or their representatives, before giving them. If the requirement is only being placed on particular communications providers (as in subsection 2(c) above), the Secretary of State must consult with them directly.

272. Subsection (5) explains that any direction must be explicitly brought to the attention of those to whom it applies.

273. Subsection (6) puts a duty on the communications provider to comply with any direction given under this section that applies to him.

274. Subsection (7) sets out the consequences of non-compliance with any direction. The Secretary of State may bring civil proceedings against the communications provider, seeking an injunction, or other appropriate relief.

275. Subsection (8) requires that the Secretary of State lay a draft of any order made under subsection (1) before Parliament and seek the approval of both the House of Commons and the House of Lords for that order.

Clause 103 Lapsing of powers in section 102

276. This section provides for the renewal every two years of the Secretary of State's power under clause 103(1) to authorise the issue of compulsory directions. The power will lapse unless it is renewed.

277. Subsection (1) provides that the power to authorise the issue of compulsory directions ceases to have effect unless an order is made under clause 103 before the end of the initial period.

278. Subsection (2) defines the initial period as two years beginning from the day on which the Act is passed.

279. Subsection (3) provides that this period may be extended by order more than once.

280. Subsection (4) requires the order extending the period to be made before the end of that period. The extension may only be for two years at a time.

281. Subsection (5) requires that an order extending the initial period must be approved by affirmative resolution.